Patna High Court
Bihar State Board Of Religious Trusts vs Raj Ratan Gir And Ors. on 24 July, 1967
Equivalent citations: 1969(17)BLJR63
JUDGMENT A.B.N. Sinha, J.
1. This appeal by the defendant first party, the Bihar State Board of Religious Trusts, hereinafter referred to as 'the Board' arises out of a suit for a declaration that the properties described in schedule B of the plaint were private Trust property of the plaintiffs and defendant No. 2 and were not 'trust property' appertaining to a 'religious trust' as defined in Sections 2(P) and 2(L) respectively of the Bihar Hindu Religious Trusts Act, 1950, hereinafter referred to as 'the Act' and for a further declaration that the order dated the 30th May, 1958, passed by the Authority appointed under Section 43 of the Act was without jurisdiction and not binding on the plaintiffs.
2. Briefly stated, the plaintiff's case was that one Damodar Gir had four sons, Radha Kishan Gir, Mahabir Gir, Narsingh Gir and Tej Nandan Gir. The plaintiffs and defendant No. 2 Surajbhan Gir are sons of Mahabir Gir. Radha Kishan Gir died issueless and Tej Nandan Gir died leaving his widow Ghiodharo Kuer and a minor son Brijbhan Gir. On the 20th September, 1921, aforesaid Narsingh Gir, one of the sons of Damodar Gir, and Brijbhan Gir, the minor son of Tej Nandan Gir deceased, instituted Partition Suit No. 191 of 1921, claiming eight annas share in serveal items of properties including the properties comprised in Schedule B of the plaint of the present suit. The said partition suit was decreed by the trial court, but an appeal, being First Appeal No. 41 of 1923 was preferred against the decree, to this Court. That appeal was disposed of in terms of a compromise which was duly recorded and was directed to form part of the decree of this Court. Some of the terms of the said compromise were as under;
1. That 8 annas out of the disputed properties shall constituted the Private Trust of the parties.
2. That the said 8 annas shall include the temple building wherein are situated the deities, Sri Shivaji and Sri Durgaji, and also the Samadhighar.
3. That all the descendants of Damodar Gir in the male line and their descendants in the male line from generation to generation shall be the trustees thereof and Mahabir Gir shall be the manager of the Math.
4. That the Income of the said 8 annas shall be devoted to the promotion and maintenance of the purposes of the said Private Trust.
5. That out of the remaining 8 annas the pltffs. Shall be entitled to hold, possess and enjoy 6 annas i.e. 3 as, each and Mahabir Gir, defendant No. 1, will hold, possess and enjoy 2 annas out of the properties in dispute.
According to the plaintiffs, the suit properties as described in Schedule B of the plaint, appertained to the private trust expressly erected under the aforesaid compromise. The temple situate at the house of the plaintiffs in which the family deities of Shri Shankar jee and Shri Dugra ji were coming in existence from time immemorial, and popularly known as Dhankutwa Math was private temple of the plaintiffs family; the worship of the deities installed therein has all along been performed by the plaintiffs and their ancestors to the exclusion of the members of the general public or others who had no right of access or worship at all. The plaintiffs and their family members were leading the life of a Grihasth and none of them had ever taken to any religious order, and, the Dhankutwa Math and the properties appertaining thereto were all private trust properties. Unfortunately, defendant No. 2 Surajbhan Gir a brother of the plaintiffs, who was not pulling on well with them with a view to harass them, had in response to a notice issued by the Authority appointed Under Section 43 of the Act had appeared before him, and by deliberately suppressing the true state of facts has suffered an order dated the 30th May, 1958 to be passed by the said Authority to the effect that Dhankutwa Math and suit properties appertaining thereto were "trust property" within the meaning of the Act. That order having thrown a cloud on plaintiffs' tittle as co-trustees along with defendant No. 2 to the suit properties as finally determined by the aforesaid compromise decree passed in First Appeal No. 41 of 1923, the plaintiffs had to institute the suit out of which this appealarises for the reliefs mentioned above.
3. The suit was contested by the defendant-appellant alone. The main defence was that the order dated the 30th May, 1958, passed under Section 43 of the Act was a good and valid order and that Dhankutwa Math and the properties thereof constituted "trust property" within the meaning of Section 2(P) of the Act and appertained to a "regions-trust" as defined, in Section 2(1) of the Act. It was also the Board's case that the temple or the deities in-stalled therein were by no means a private temple and family deities, and that the plrfs. did not lead the life of a Grihastha as alleged by them but lead, the life of a Mahanth having renounced all the domestic ties and that succession to the Mahanthship of Dhankutwa Math was governed by the usage and Custom of the said Math, It was also claimed that the members of the general public have all along been exercising their right to worship the deities in question at the Math. It was also pleaded that the suit was barred by limitation under Sub-section (5) of Section 42 of the Act as it had been instituted beyond ninety days of the date of the order passed by the Authority, under Section 43 of the Act.
4. The trial court has held that the suit, as framed, was maintaianable that the properties in suit were private trust properties of the plaintiffs and defendant No. 2 and did not appertain to a 'religious trust' as defin-ed in Section 2 (1) of the Act, and, as such, the Act was not applicable to the suit properties at all, that the defendant-appellant had no jurisdiction to take any action in respect of the suit properties under the Act, and, therefore, the impugned order dated the 30th May, 1958 passed under Section 43 of the Act was not binding on the plffs., and finally that the suit was not barred by limitation. On the above findings, the suit has been decreed. Hence, this appeal by defdt. No. 1.
5. Mr. Prem Lall, learned Counsel appearing for the defendant-appellant, has raised two contentions; (1) that the trial court was wrong in holding that the suit was not barred by limitation, and (2) that on the materials on the record it should have held that the properties in suit were 'trust properties' within the meaning of Section 2(o) of the Act and appertained to a 'religious trust' as defined in Section 2(1) thereof, as had been declared by the order dated the 30th May, 1958 by the Authority appointed Under Section 43 of the Act, which order was a perfectly valid and proper order and binding on the plffs.
6. 'Trust Property' and 'religious trust' are respectively defined in Sections 2(p) and 2(1) of the Act. According to the definition, 'trust property' means the property appertaining to a religious trust; and, 'religious trust' means "any express or construc-tive trust created or existing for any purpose recognised by Hindu law to be religious, pious or charitable, but shall not Include a trust created ac-cording to the Sikh religious or purely for the benefit of the Sikh community and a private endowment created for the worship of a family idol in vvhicirthe public are; riot Interested". Section 3 provides, inter alia, that the Act shall apply to all religious trusts, Whether created before or after the commencement of the Act; The decision of the Supreme Court in the case of Mahanth Ram Saroop Dasji v. S.P. Sahi is an authority for the proposition that the provisions of the Act do not apply to any private religious trust at all. Before dealing with the contention, raised on behalf of the appellant, it will be useful to read Sub-section (1) of Section 43 of the Act in so far as it is relevant for our purpose in the context of the definitions of 'trust property' and 'religious trust', and the decision of the Supreme Court, referred to above, Sub-section (1) of Section 43 (minus the proviso thereto which is not relevant for our purpose) reads as under:
43. Decision of disputes as to whether any immovable property is a trust property-(1). All disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on application, by the authority appointed in this behalf by the State Government, by notification, in the Official Gazette;
It appears to me that Sub-section (1) of Section 43 on its express terms refers to disputes in connnection with the question whether one or more items of immovable property was a trust property or not or appertained to a trust property. It does, not include within its ambit the determination of the question as to the nature of the propetty itself, namely, whether a property in question was a trust property as defined in the Act or was a property which appertained to a private religious trust. The scope of Section 43 has been the subject matter of a Bench decision of this Court in Bihar Religious Trust Board v. Mahanth Jaleshwar Gir I.L.R. 46 Pat. 223, where the view which has been taken is that "if a dispute was in regard to the nature of the trust itself, Section 43 was not at all attracted and that neither the Board nor the Trustees nor any other person could approach the Authority for a declaration that a particular endowment or trust or institution was a public trust and not a private one or vice-versa. I find myself in respectful agreement with this view, and, in the circumstances, it is not necessary to further discuss this matter. In the instant case, at the instance of the Special Officer, Bihar Hindu Religious Trust Board, Patna, the Authority appointed'"'Under Section 43 of the Act has passed the impugned'" order dated the 30th May, 1957 holding that the Math, its temple and the deities and the properties attached thereto were in the nature of the public religious trust property (vide Ext. D). On the scope and ambit of Section 43, it was neither open to the Special Officer, Bihar Hindu Reli gious Trust Board, Patna,' who approached the Authority for any such declaration or order, nor was it competent for the Authority to make the aforesaid order. It, therefore, follows that the impugned order passed by the Authority appointed Under Section 43 of the Act on the 30th May, 1958 was wholly without jurisdiction. Upon this con elusion, the contention that the suit was barred under the special rule of limitation provided in Sub-section (5) of Section 43 must fail on the simple ground that the said rule of limitation as provided for in Sub-section (5) of Section 43 of the Act can be attracted to only such orders as can be passed by the Authority Under Section 43 of the Act, and not to orders which he had no jurisdiction to pass or make. The first contention accordingly, fails.
7. Mr. Prem Lall, at a later stage of his submissions, urged that the order passed by the Authority Under Section 43 of the Act was in the nature of an order or judgment in rem and, as such, was binding on the plffs. even though they were not parties to the proceeding before the Authority. Strictly speaking, it is not necessary to decide this question, because whether the order passed by the Authority Under Section 43 of the Act was an order in rem or was an order in personam, it will have no effect if the order, as in the present case, was without jurisdiction. Yet, as the point has been argued at length, it may e briefly disposed of. It is true that Clause (a) of Sub-section (2) of Section 43 provides for the publication of a general notice in the prescribed manner calling upon all persons having any claim to such property to file their claims within a certain time from the publication of the general notice. In Halsbury's Laws of England, Volume 22, page 742, paragraph 1605, judgments in rem and in personam have been have been described as under:
A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation. A judgment in personam determines the rights of the parties inter se to or in the subject matter in dispute, whether it be corporeal property of any kind whatever, or a liquidated or unliquidated demand, but does not affect the status of either persons or things, or make any disposition of property, or declare or determine any interest in it except as between the parties litigant.
There is nothing in the above passage to indicate that merely because a procedure for giving a general notice calling upon all persons having any interest or claim in the property which might be the subject-matter of adjudication or determination before a court or an Authority has been provided for, the order passed by the Authority or the judgment rendered by the court will be an order or a judgment in rem. Moreover, apart from the fact that Clause (B) of Sub-section (2) of Section 43 provides for notices to be served on the Board and on the persons stated in the application or known to such authority to be in possession of the property clearly envisaging the determination of some particular interest of a particular party in the subject matter of litigation, we find that under Sub-section (5) and (6) of Section 43 the order passed by Authority is made subject of the final result of any suit that might be instituted by the person who is aggrieved by the said order. In this connection, reference may be made to Section 41 of the Indian Evidence Act, 1872. In the case of Secretary of State v. Syed Ahmad Badsha Sahib Badadur A.I.R. 1920 Mad. 248 F.B. Kumaraswami, J. observed as followed :
If it a judgment in rem, the court under Section 41 of the Evidence Act will treat it as conclusive proof of the matters stated in that section and under Section 41 it will prevent evidence from being given for the purpose of disproving the facts established by the Judgment in rem. One has only to file the judgment and the court has no option but to decide the matter covered by it in accordance with the declaration in that judgment, even thought the other party may be in a position to prove facts to the contrary. So far as judgments in rem are concerned, I think the matter is codified by Section 41 of the Evidence Act which stated that judgments would be judgments in rem so as to make them conclusive proof of the declarations granted by them. It seems to me that it is not pone to us, in the face of the sections of the Civil Procedure Code, the Evidence Act ad the Specific Relief Act, to hold that judgments not falling within those sections would still be a bar to an action or afford conclusive proof. This, in effect, would be to create new kinds of res judicata and to destroy the distinction between judgments in rem and judgments in personam which has been laid down in Sections 41 and 42 of the Evidence Act.
An order passed under Section 43 of the Act cannot be said to be an order passed in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction. On this short ground alone, apart from the other considerations into which in the instant case it is not necessary to go, it must be held that the order does not partake the character of an order in rem; and, as the plaintiffs were neither parties nor could be said to be represented through their brother, defendant No. 2, in the proceedings before the Authority in which the impugned order was passed, they can not be said to be bound by the same.
8. Reference was also made by Mr. Prem Lall to Section 77 of the Act and it is urged that in view of the provisions of that section, the suit out of which this appeal arises was not at all maintainable. Section 77 provides, inter alia, that "Save as otherwise provided in this Act, no suit shall be brought in any Civil Court to set aside or modify any order made under this Act". It is, however, clear, that the exclusion of the jurisdiction of the Civil Court as provided for in Section 77 will not be attracted to a suit where an order, which was wholly outside the Act, was sought to be challenged. The suits, which are barred Under Section 77, must be suits in respect of any act done or purporting to be done under the Act. If, however, the act or order challenged is wholly outside, the statute, the jurisdiction of the Civil Court can not be excluded. This is well settled (vide Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana . The Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar and, The Provincial Government of Madras v. J.S. Basappa ). There is, thus, no merit in this submission as well.
9. On the question whether the property in suit was a private trust property of the plaintiffs and defendant No. 2 or was a public trust property, Mr. Prem Lall reiterated before us the same arguments which were advanced before the trial court. Apart from the various documents produced on behalf of the plaintiffs disclosing that they had been dealing with the properties in dispute since long as their private property (vide Exts. 5, 5/a, 6, 5/b and 7, the very first clause of the compromise arrived at in this Court in First Appeal No. 41 of 1923 puts the matter beyond controversy. On the terms of the said compromise, it is clear that 8 annas out of the properties of which partition was sought were to constitute the private trust of the parties. The dealings of the parties whether before or subsequent to the said compromise amply corroborate the position that the properties described in Schedule B of the plaint appertain to a private trust and do not by any means constitute or appertain to a public trust within the meaning of Section 2(p) and 2(l) of the Act. I am, therefore, satisfied that the Judgment of the trial court on this issue as well is well founded and cannot be interfered with.
10. No other point was urged on behalf of the defendant appellant.
11. In the result, the appeal fails and is dismissed with costs.
M.P. Verma, J.
12. I agree.